Judge Rules Jury Cannot Consider Lesser Charge in Kansas Murder Trial

WICHITA, Kan. – The judge in the trial of a man accused of murdering an abortion doctor dealt the defense a major setback Thursday, ruling that the jury cannot consider a lesser charge of manslaughter.

The ruling came hours after Scott Roeder took the stand in his own defense and admitted killing Dr. George Tiller, saying he acted to save the lives of unborn children.

Roeder's attorneys had hoped to win a lesser conviction of voluntary manslaughter, which requires them to show their client had an unreasonable but honest belief that deadly force was justified. The charge carries a considerably lighter sentence than murder.

Roeder testified that he considered elaborate schemes to stop the doctor, including chopping off his hands, crashing a car into him or sneaking into his home to kill him.

But in the end, Roeder told jurors, the easiest way was to walk into Tiller's church, put a gun to the man's forehead and pull the trigger.

"Those children were in immediate danger if someone did not stop George Tiller," Roeder said as the jury watched attentively but without a hint of surprise.

"They were going to continue to die," he said. "The babies were going to continue to die."

Roeder has pleaded not guilty to murder in the attack at the Wichita church where Tiller was an usher. Witnesses have described how Roeder walked into the building's foyer shortly after the service started, approached Tiller and fired a single shot before fleeing.

After Roeder's testimony, District Judge Warren Wilbert ruled that the jury would not be permitted to consider the manslaughter charge because abortion, including late-term abortion, is legal in Kansas and because Tiller did not pose an imminent threat.

"There is no immediate danger in the back of a church," the judge said. He also ruled out a second-degree murder conviction, which does not involve premeditation, because it was clear Roeder planned the killing.

"It would be hard for a reasonable fact-finder to find anything other than the defendant formulating his belief and then planning on multiple occasions ... to carry out his intention to (kill) Dr. Tiller."

In a November interview with The Associated Press, Roeder publicly confessed to shooting Tiller, who was one of the few doctors in the country who performed late-term abortions.

Roeder said he considered other ways of killing Tiller, including driving his car into Tiller's or shooting him with a shotgun. But he said he was concerned those approaches could hurt others.

"I did what I thought was needed to be done to protect the children," Roeder said. "I shot him."

He testified that he wrapped the .22-caliber handgun in a piece of cloth and buried it in a rural area. The weapon has not been recovered.

Prosecutors were careful during the first few days of testimony to avoid the subject of abortion and to focus on the specifics of the shooting. District Judge Warren Wilbert said he did not want the trial to become a debate on abortion, but he said he would give Roeder a great deal of "latitude" when discussing his beliefs because they were integral to his defense.

Throughout his questioning, Roeder appeared calm and collected, waiting quietly each time prosecutors objected to something he said about medical procedures or late-term abortions, which the judge forbade him from testifying about.

When asked, for example, to detail the types of abortion procedures he was familiar with, Roeder answered "four or five" and then listed them. In one instance, he described a procedure as the fetus being "torn limb from limb" — a characterization that prompted a quick objection from prosecutor Nola Foulston.

During a lengthy cross examination, Foulston tried to keep Roeder's responses to "yes" or "no." At one point, Roeder acknowledged that he had been thinking about killing abortion providers since the 1990s, and had considered using a sword to chop off Tiller's hands or killing him at his home.

Roeder testified though that he thought chopping off Tiller's hands was not a good solution because Tiller would still be able to train people. He said Tiller's home was not a good location because it was in a gated community and difficult to access.

Roeder also said he had gone to Reformation Lutheran Church on three other occasions to kill Tiller, once the evening before and once the week before Tiller was shot, and once in 2008, but Tiller was not at the church on those occasions.

Earlier Thursday, District Judge Warren Wilbert barred former Kansas Attorney General Phill Kline from testifying after listening to a preview of Kline's testimony without the jury present.

Kline investigated Tiller's clinic, Women's Health Care Services, in 2006 because he suspected Tiller was violating state laws pertaining to late-term abortion. The case was later dropped because of jurisdictional issues.

Wilbert said much of Kline's testimony would have amounted to "exactly what this court seeks to avoid."

"I said I would not allow this courtroom to turn into a forum or a referendum on abortion," Wilbert said.

The defense had hoped to show Roeder was frustrated by Kline's failure to prosecute Tiller and was influenced in part by Kline's belief that Tiller was breaking the law.